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2006 DIGILAW 260 (JHR)

Laxmi Narain Ramaswarup Shivhare And Co. v. State Of Jharkhand

2006-03-24

M.Y.EQBAL

body2006
JUDGMENT M.Y. Eqbal, J. 1. In all these writ petitions, since common question of law and facts are involved, they have been heard together and are being disposed of by this common judgment. 2. Petitioners, who are the licensees in respect of shops of Country, Liquor, Spiced Country Liquor and Indian Made Foreign Liquor in the different districts of the State of Jharkhand, have challenged the notification dated 10.1.2005, issued by the Commissioner of Excise-cum-Secretary, Department of Excise & Prohibition, Government of Jharkhand, Ranchi whereby Clause 14(kha) of the Sale Notification has been amended. 3. Facts of the case lie in a narrow compass: In the year 2004, Sale Notification was issued on 14.5.2004 by the Commissioner of Excise for settlement of Country Liquor, Spiced Country Liquor and Indian Made Foreign Liquor shops in the different districts of the State of Jharkhand. Immediately after the publication of the Sale Notification, the Commissioner of Excise issued another notification dated 21.5.2004 by which. Excise 14(kha) of the Sale Notification dated 14.5.2004 was amended. After amendment of Clause 14(kha) in the Sale Notification, the settlement process was initiated by the Commissioner of Excise and the petitioners having fulfilled the terms and conditions of the Sale Notification, was allowed to trade in Country Liquor, Spiced Country Liquor and Indian Made Foreign Liquor in the different districts of the State of Jharkhand and licences to that effect were granted to the petitioners 4. Petitioners case is that after the issuance of licence, the Commissioner of Excise illegally and arbitrarily issued another notification on 10.1.2005 by which, amendment in Clause 14(kha) of the Sale Notification was nullified. Petitioners further case is that prior to amendment vide notification dated 21.5.2004, Clause 14(kha) provided for deposit of advance licence fee for a period of three months immediately after the settlement and the balance of the license fee is to be paid in monthly installments. The advance licence fee so paid at the time of settlement is to be adjusted in the months of October to December of the last financial year in which the licence expires. In other words, Clause 14(kha) were so amended to adjust the advance licence fee on a year to year basis. The said conditions were amended with a view to allow adjustment of advance licence fee on yearly basis. 5. In other words, Clause 14(kha) were so amended to adjust the advance licence fee on a year to year basis. The said conditions were amended with a view to allow adjustment of advance licence fee on yearly basis. 5. learned Counsel appearing for the petitioners submitted that the Commissioner of Excise had no authority to alter the terms and conditions of the Sale Notification after the settlement of liquor vend has been made. learned Counsel further submitted that amendment was brought on 21.5.2004 before settlement and on the basis of this amended Clause 14(kha), petitioners participated- in the Tender and got settlement of the shops. In that view of the matter, during the subsistence of the licence period, no amendment could be made. 6. In the counter-affidavit, filed by the Commissioner of Excise, it is stated that the Government has adopted a new policy for settlement of retail liquor shops and issued Notification dated 21.2.2004. In pursuance of the order, the Excise Commissioner, after the approval of Member, Board of Revenue, issued Sale Notification. However, it was found that the amendment made vide Notification dated 21.5.2004 was not approved by the Government and, therefore, directed implementation of condition No. 14(kha) of the Sale Notification dated 14.5.2004. It is further stated that if advance licence fee paid by the licensees is adjusted, as per the amendment dated 21.5.2004, it will give liberty to the licensees to escape from contract after the end of financial year at their sweet will, which they cannot do as per the condition of Sale Notification. 7. The only question that falls for consideration is whether the conditions of the Sale Notification issued in Form-127 can be amended or modified by the authorities of the respondents for the purpose of grant of licence to trade in Country Liquor, Spiced Country Liquor and Indian Made Foreign Liquor. A copy of the Sale Notification has been annexed as An-nexure-1 to the writ petition. Condition No. 24 of the Sale Notification very clearly provides that the licensees shall abide by all the terms and conditions and the rules that may be time to time made by the respondents. The licensees shall also abide by the instructions and conditions that may time to time be issued by the respondents. Condition No. 24 of the Sale Notification very clearly provides that the licensees shall abide by all the terms and conditions and the rules that may be time to time made by the respondents. The licensees shall also abide by the instructions and conditions that may time to time be issued by the respondents. From perusal of the Notification it is evident that Condition No. 14(kha) of the Sale Notification provides that the advance licence fee well be adjusted at the last year of block period of settlement. If the advance amount is yearly adjusted, it will give liberty to the licensees to escape from contract after the end of financial year at their sweet will. For avoiding the situation and in the interest of the State revenue, this condition has been incorporated in the Sale Notification. Admittedly, by the Sale Notification petitioners were allowed the grant for three years but the licence has to be renewed every year and, therefore, no prejudice would be caused to the petitioners if advance licence fee is adjusted at the end of contract period. 8. Taking into consideration all these facts, I do not find any merit in these writ petitions which are accordingly dismissed.